| People v Carmona |
| 2009 NY Slip Op 07697 [66 AD3d 1240] |
| October 29, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Miguel A.Carmona III, Appellant. |
—[*1] James Sacket, District Attorney, Schoharie (Michael L. Breen of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Schoharie County (Bartlett,III, J.), rendered October 24, 2007, convicting defendant upon his plea of guilty of the crimes ofmanslaughter in the first degree and robbery in the first degree.
Defendant was indicted on charges of murder in the second degree, manslaughter in the firstdegree, and two counts of robbery in the first degree. Defendant negotiated a guilty plea tomanslaughter in the first degree and one count of robbery in the first degree, and was sentencedto concurrent prison terms of 25 years and five years of postrelease supervision. Prior tosentencing, defendant moved to withdraw his plea. County Court denied the motion, promptingthis appeal. We affirm.
After entering his guilty plea, defendant moved to dismiss his original attorney and wasappointed new counsel who subsequently moved to withdraw the plea. In support of the motionto withdraw, defendant's new counsel submitted an affirmation indicating that (1) defendant maynot have had sufficient time to confer with prior counsel before offering his plea, (2) prescriptionmedication may have affected defendant's ability to comprehend the proceedings, and (3)defendant's prior counsel failed to move to withdraw the guilty plea and misled defendant as tothe whole process. Defendant also submitted an affirmation from his original attorney indicatingthat the attorney had spoken with several witnesses, investigators and attorneys associated with[*2]the matter and had been prepared to bring the case to trial.The attorney reviewed medical records that indicated that a breathing tube was incorrectlyplaced in the victim's body, raising a potential defense of intervening medical malpractice, whichthe attorney discussed with defendant. The attorney had many conversations with defendant andadvised him as to the strengths and weaknesses of the People's case. When defendant vacillatedover whether to plea, the attorney advised him not to rush his decision. The record indicates thatdefendant originally rejected the plea offer on March 28, 2007, however, he reconsidered somesix weeks later and accepted the plea on May 10, 2007.
Whether a defendant is allowed to withdraw a guilty plea is left to the sound discretion of thetrial court (see People v Thomas,50 AD3d 1315, 1316 [2008]; People v Ellis 43 AD3d 485, 486 [2007], lv denied 9NY3d 961 [2007]; People vThomas, 25 AD3d 879, 880 [2006], lv denied 6 NY3d 853 [2006]). Generally, aplea may not be withdrawn unless there is some evidence of innocence, fraud or mistake in itsinducement (see People v Thomas, 50 AD3d at 1316; People v Hunt, 29 AD3d 1081, 1082 [2006], lv denied 7NY3d 813 [2006]; People v Thomas, 25 AD3d at 880). "Moreover, '[w]here a defendanthas been fully informed of the rights he [or she] is waiving by pleading guilty and proceeds toadmit the acts constituting the crime, a subsequent protestation of innocence which is notsubstantiated by any evidence is generally insufficient to support a request for vacatur of theplea' " (People v Davis, 250 AD2d 939, 940 [1998], quoting People v Paulk, 142AD2d 754, 754 [1988], lv dismissed 72 NY2d 960 [1988]; accord People vThomas 25 AD3d at 880).
County Court engaged in a detailed colloquy with defendant during the plea allocution,explaining the rights he possessed and eliciting defendant's clear acknowledgment of the rightshe was waiving. The court then asked defendant if he committed the acts set forth in the secondand third counts of the indictment, reading the allegations of both counts from the indictment,independently. In response, defendant replied, "Yes, sir." "Nothing in the record of the pleaallocution called into question the voluntary, knowing and intelligent nature of defendant'sbargained-for plea" (People vSeeber, 4 NY3d 780, 780 [2005] [citation omitted]). Nor was any hearing requiredbased on hearsay or vague, ambiguous or conclusory statements contained in the affirmation ofdefendant's second attorney (see Peoplev Wyant, 47 AD3d 1068, 1069 [2008], lv denied 10 NY3d 873 [2008];People v Hudson, 237 AD2d 759, 760 [1997], lv denied 90 NY2d 1012 [1997];compare People v Hawkins, 271 AD2d 756, 758 [2000]). Although counsel was grantedan adjournment to prepare the motion to withdraw the plea, no affidavit by defendant wassubmitted to substantiate his claim of ineffective assistance or to cast doubt on his ability tocomprehend the plea proceedings.
" 'In the context of a guilty plea, a defendant has been afforded meaningful representationwhen he or she receives an advantageous plea and nothing in the record casts doubt on theapparent effectiveness of counsel' " (People v Singletary, 51 AD3d 1334, 1335 [2008], lvdenied 11 NY3d 741 [2008], quoting People v Ford, 86 NY2d 397, 404 [1995]).Defendant was 18 years old at the time of his plea, and the benefit of avoiding a potential lifesentence is self-evident. During his plea, defendant expressly acknowledged his satisfaction withcounsel and admitted discussing his rights and possible defenses with counsel, which counselconfirmed on the record. Defendant acknowledged having sufficient time to consider his pleaand denied being under the influence of any drugs or alcohol, or having any physical, mental oremotional illness that prevented his understanding of the proceedings. Nothing in the record callshis comprehension of the proceedings into question.[*3]
As to the potential defense of intervening medicalmalpractice, the Court of Appeals has held that where " 'felonious assault is operative as a causeof death, the causal co-operation of erroneous surgical or medical treatment does not relieve theassailant from liability for homicide' " (People v Stewart, 40 NY2d 692, 697 [1976],quoting People v Kane, 213 NY 260, 270 [1915]). In his plea allocution, defendantadmitted causing the injuries which resulted in the victim's death. Defendant never deniedcausing those life-threatening injuries, and nothing in the record even suggests an interveningcause that would have necessitated the medical treatment that the victim received. Accordingly,we find no abuse of discretion in County Court's denial of a hearing on the issue.
Cardona, P.J., Peters, Kavanagh and Stein, JJ., concur. Ordered that the judgment isaffirmed.